On leave granted, the State appeals from an order suppressing evidence seized during a warrantless search of an automobile in which defendant was an occupant.

The principal issue is whether the prosecution must prove the lawfulness of warrantless searches beyond a reasonable doubt or does a preponderance of the proofs on the question satisfy constitutional requirements.

Defendant was indicted for the unlawful possession of a pistol in an automobile on August 17, 1974, in violation of N.J.S.A. 2A:151-41. At the hearing on his motion to suppress the weapon as evidence testimony was taken from the arresting officer, New Jersey State Trooper Douglas Sinopoli, and the three occupants of the involved automobile: James Thorpe, the driver; Dolores Vaughn, its owner; and defendant.

There is no need to detail the factual record in reaching the legal issue. Suffice to say that there was sharp testimonial divergence between the witnesses as to the circumstances of the arrest of Dolores Vaughn for the possession

of marijuana and the subsequent search of her vehicle which uncovered a .25-caliber automatic in the trunk, admittedly defendant's property. At the conclusion of this hearing the trial judge denied defendant's motion, crediting Trooper Sinopoli's version of the occurrence and concluding that the search of the vehicle was justified as being incidental to a lawful arrest. The judge made this finding:

Thereafter, on defendant's motion the trial judge ordered that the evidence be suppressed, stating "I am going to reverse my prior ruling with respect to the burden of proof in Fourth Amendment hearings." He iterated that he was satisfied by a preponderance of evidence that Sinopoli's version of the transaction was true but that he was "not convinced beyond a reasonable doubt that the trooper did what he says he did."

In response to the State's appeal defendant argues that the trial judge properly applied the "reasonable doubt" standard of proof and that in any event there was no basis to find that "the actions of Trooper Sinopoli were reasonable in asking the defendant and other occupants to exit the vehicle." We disagree with the latter assertion, satisfied that the record supports the trial judge's holding that the State had preponderated in demonstrating the justification for the challenged search. Contrary to defendant's argument, we do not regard United States v. Cupps , 503 F.2d 277 (6 Cir. 1974), as persuasive. The factual pattern reflected in Cupps was clearly different from the special circumstances presented in this record.

In New Jersey it is now settled that the Fifth Amendment issue of the voluntariness of an accused's statement or confession must be shown beyond reasonable doubt. And this, even though the United States Supreme Court has authorized

use by the individual states of the lesser standard of preponderance of the evidence. United States v. Matlock , 415 U.S. 164, 94 S. Ct. 977, 39 L. Ed. 2d 242 (1974); Lego v. Twomey , 404 U.S. 477, 92 S. Ct. 619, 30 L. Ed. 2d 618 (1972); State v. Kelly , 61 N.J. 283 (1972), and State v. Yough , 49 N.J. 587 (1967). Should the Fourth Amendment issue of the legality of search and seizure without a warrant be tested by the same standard of proof as that called for by Kelly and Yough in Fifth Amendment cases? We conclude not and reverse.

The privilege against self-incrimination embodied in the Fifth Amendment ordinarily involves verbal expressions. While there may be other forms of self-incriminating evidence, confessions or statements against interest are the classic type of evidence which is the focus of the Fifth Amendment. A confession, if found to be voluntary and trustworthy, is inculpatory proof of the highest order. The exclusionary rule employed against receiving involuntary confessions into evidence serves a dual purpose. It is aimed not only as a deterrent against lawless police conduct: the rule even more importantly bears upon the probative worth of quality of the underlying evidence. Thus, the principal historical basis for the exclusion of self-incriminating statements obtained in violation of constitutional strictures recognizes the very great risk that evidence originating in this fashion is probably unreliable. State v. Kelly, supra 61 N.J. at 292. The use of a possibly tainted confession directly affects the ...

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